Study Of The Nature Of Rental Rights

Lease relationship is an important property relation in our social life, but China's"property law"didn't incorporate it into the proper system. There are many controversies of theorist about which right the lease right belongs to. The exact location of housing leasehold's legal attribute is the premise to correctly understand the structure of housing rental system, the feature, strength, and protection methods of housing leasehold. It is not only theoretically important but also further perfect the legal system of house rent and standardize the house rent market to clear the relationship among the lessor, the lessee and the non-specific third party.This paper attempts to compare the laws and theoretical results of housing leasehold system of our country and those of other countries especially civil law system countries by means of comparative analysis. Meanwhile, it analyses and demonstrates the overseas relevant legal experience which benefits our housing leasehold system according to our country's specific conditions. It also discusses the complete legislation of our country's housing leasehold system. This paper includes the following three chapters:Chapter one analyses the previous studies of the nature of housing leasehold. As to the nature of housing leasehold, there are mainly three academic viewpoints: the discussion of creditor's rights, the discussion of leasehold property, and the discussion of property. This part begins with the relationship between the housing leasehold and the lease contract, the disposition of property to measure and retort the discussion of the creditor's right. It favors the point that housing leasehold is created by contract but it doesn't mean a right of contract, that punishment is not the essence of property. Then the paper measures and retorts the discussion of leasehold property from the perspective of the definition of leasehold property and leasehold secondary power. It is deemed that the numerus ease system is better than the strict numerus clausus and the discussion of second power confuse right with powers and functions. Finally it supports the point of property and in order to accurately master the nature of housing leasehold, the relation of the debt and the property of the house rent should be strictly distinguished.The second chapter is the qualitative analysis of housing leasehold. It is thought that after the lease contract takes effect, the rights enjoyed by the lessee are contract creditors before the house is delivered. The real housing leasehold refers to the rights enjoyed by the lessee before the house is delivered. The lessee's use of the rules of occupation, use, benefit, and the use of the rules of"lease sale does not break","mortgage does not break lease","protection against the third person"make the housing leasehold have the feature of the property's direct control and exclusiveness. In addition, housing leasehold's other distinctive features such as sustainability, preemption and the possibility of sanctions gradually possess the property's efficacy.The third chapter deals with the legislative completeness of housing leasehold. This part firstly mentions the deficiency of our country's Property Law and Usufruct System. In the present situation where the disposition of property is more and more prominent, it is very necessary to comprehend once more the Usufruct System and enrich the diversity of Usufruct System. The housing leasehold should be attributed to Usufruct System. After analyzing our country's Rental Housing Registration System, it illustrates the publication rules of housing leasehold: the housing leasehold takes effect after the house is delivered, the lessee doesn't lose the occupation of the house or the house'leasehold will lose the efficacy to confront the third. Those houses which are not registered, the lessee will not have the disposition power of housing leasehold. He cannot sublet the house even if the sublease will make any difference to the lessee or it isn't mentioned in the contract.